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Yale Law School Faculty Scholarship

1-1-1966

Justice and Protection

Alexander M. Bickel
Yale Law School

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Bickel, Alexander M., "Justice and Protection" (1966). Faculty Scholarship Series. Paper 3964.
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JUSTICE AND PROTECTION

Alexander M. Bickel*
The problem of law enforcement in the South, or in a current and
not inaccurate phrase, "Jim Crow justice," has come to be symbolized
by a number of well-publicized killings in recent years. Medgar Evers,
head of the NAACP in Jackson, Mississippi, was shot from ambush in
the spring of 1963. Lemuel A. Penn, a Washington, D.C., Negro, was
killed while driving through Madison County, Georgia, in July 1964.
That same summer saw the brutal murder of three civil rights workers,
Michael Schwerner and Andrew Goodman, both white Northerners,
and James Earl Chaney, a local Negro, in Philadelphia, Mississippi.
In the spring of 1965, Mrs. Viola G. Liuzzo of Detroit was shot to death
in Lowndes County, Alabama, on the highway between Selma and
Montgomery. Some months later in Hayneville, the seat of Lowndes
County, Jonathan M. Daniels was killed, and his companion, a Catholic
priest, badly wounded, by a shotgun blast fired in the street, in daylight, before witnesses.
There have been no state-court convictions in any of these cases,
nor even a state prosecution in the Schwerner-Goodman-Chaney case.
One Byron de la Beckwith was twice tried for the Evers killing in a
Mississippi court, and twice there was a hung jury. The shooting of
Mrs. Liuzzo was seen by an F.B.I. informer riding in the murder car.
A first trial in Hayneville of Collie LeRoy Wilkins, whom the F.B.I.
informer identified as the killer, resulted in another hung jury. A second
trial ended in acquittal. Thomas L. Coleman, also tried in Hayneville,
admitted that he shot Daniels. His defense was that Daniels and his
companion were armed and threatening him. He was acquitted. Men
accused in the Penn killing were acquitted in Danielsville, Georgia, in
September 1964.
It is necessary to resist the temptation to feel certain that each
of these cases was a miscarriage of justice. Individual guilt is simply
not to be determined-not in any circumstances, even for purposes of
public action or private judgment-on the basis of newspaper reports
of trial proceedings, or of police or prosecution charges. But quite
aside from the question of individual guilt, which is properly left
open, one may be troubled by the frequency of these acquittals and
hung juries and by their similarity. A coincidence of innocents cannot
be all there is to it. Moreover, the South has produced a remarkable
number of unsolved cases, all of a particular kind. The murders men*Kent Professor of Law and Legal History, Yale Law School.

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[VOL. XXXV1I

tioned above are merely the tip of the iceberg. In a report on equal
protection in the South released on November 14, 1965, the United
States Commission on Civil Rights records the estimate that between
January 1955 and January 1959 there were 225 incidents of racially
motivated violence in the South, including 6 killings, 73 shootings,
beatings, and stabbings, and 74 bombings and burnings of homes,
schools, and churches.' "The number of incidents," the Commission
continues, "increased greatly in 1961 as a result of organized civil
rights activity."2 In Mississippi alone in the summer of 1964-the summer of the Philadelphia murders-there were some 6 murders, 35 shootings, 65 bombings and burnings, and 80 beatings. And no arrests or
prosecutions, let alone convictions, to speak of.3 These statistics are
translated into people, places and events-quite literally into flesh and
blood-in the transcript of hearings held by the Commission in Jackson, Mississippi, in February of this year. The transcript makes bad
reading and demonstrates beyond question that the criminal writ has
4
not run in parts of the South against certain kinds of violence.
If convictions were obtainable in cases of this sort, which is to
say, if the criminal law of the state were normally enforced, there would,
no doubt, be some deterrent effect. No one can say how much. No one
has any real quantitative idea of the deterrent force of the criminal
law. But there would, we may assume, be some. And the criminal law
would at any rate play its symbolic and supportive role as vindicator
of the moral order. But the criminal law is, at best, a blunt and
primitive instrument for controlling behavior. It works best when it
bespeaks and confirms the virtually unanimous moral indigation of the
community-which, sadly but plainly enough, it cannot be said to do
in civil rights cases in such a place as Lowndes County, Alabama. Even
in ideal circumstances, however, the criminal law does not get at the
roots of vicious acts and is incapable of absolutely preventing their
recurrence. This much is as true in Lowndes County as on the streets
of northern cities. Therefore, no matter what effective measure might
be taken to visit criminal punishment on the perpetrators of racial
killings and assaults who now so often go free, a substantial problem of
affording protection against racially motivated violence would remain
to be dealt with by additional, more direct means.
"Jim Crow justice" has two other, quite separate aspects as well.
One, emphasized and illuminated in Southern justice, is the administra1

UNITED

STATES COMMISSION

ON

CivIL RIGHTS,

LAw

ENFORCEMENT

12-13

(1965).
21d. at 13.

3lbid.
4

See UNrIED STATES COMMISSION ON CIVIL RIGHTS, ADMINISTRATION

(1965)

(hearings held in Jackson, Mississippi).

HeinOnline -- 37 Miss. L.J. 408 1965-1966

OF JUSTICE

1966]

SOUTHERN JUSTICE

tion of the criminal law against Negroes and their white allies, which
in the Deep South is generally discriminatory and often brutally unjust
in individual cases. Here we come around full circle. The question
is not how to activate a criminal process that will in some measure tend
to protect the victims of racial outrages, but how to protect people from
racial outrages committed by a perverted criminal process. Finally
there is the other side of this coin, which may be observed also in
northern cities: the evil practice, on the part of police and other law
enforcement officers, of acquiescing in, and indeed encouraging, the
demoralization of the Negro community by failing to apply to it the
moral standards embodied in the general criminal code. A different and
laxer law often governs with respect to assaults and even homicides
in the Negro ghetto (always provided the victim is not white), and
certainly with respect to other, less grave offenses.
The "negro law" of Mississippi is a law of many parts.
. . From the letter of our statutes, a stranger might justifiably
infer they applied to all persons within this state.... The judges,
lawyers, and jurors all know that some of our laws are intended
to be enforced against everybody, while others are to be enforced against the white people, and others are to be enforced
only against the negroes; and they are enforced accordingly.
...There are some things . . . that a negro may do with impunity.. . while a white man ... would get ten years .... 5
This passage-perhaps there is some tacit rue in it, but no apparent
embarrassment-is taken from an article published in a legal magazine
of high standing and national circulation by a Mississippi lawyer named
S. F. Davis in 1913. A great deal of evidence can be adduced to show
that in Mississippi and elsewhere things remain much the same.
The search for solutions naturally begins with the Southern jury,
which is what it is because it is almost invariably all-white. The Supreme
Court has, of course, held unrelentingly since 1880 that the fourteenth
amendment forbids racial discrimination in the selection of juries.6
In pursuance of this principle, however, the Court has done no more
than occasionally reverse criminal convictions upon proof that there
was discrimination in the selection of the jury that rendered the
verdict. A different sort of attack on the all-white jury proved successful in a recent case with the wonderful allegorical title of Gardenia
White v. Bruce Crook7 (Gardenia White being a Negro plaintiff
5
See
6

Davis, The Negro Law of Mississippi, 20 CASE AND COMMENT 329 (1913).
Eubanks v. Louisiana, 356 U.S. 584 (1958); Avery v. Georgia, 345 U.S. 559
(1953); Ex parte Virginia, 100 U.S. 339 (1880); Strauder v. West Virginia, 100
U.S. 303 (1880); Gordon v. Breazeale, 246 F. Supp. 2 (N.D. Miss. 1965); Smith
v. Breazeale, 245 F. Supp. 978 (N.D. Miss. 1965).
7Civil Action No. 2263-N, D. Ala., Feb. 7, 1966.

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MISSISSIPPI LAW JOURNAL

[VOL. XXXV11

and Bruce Crook a member of the Jury Commission of Lowndes County,

Alabama). The decree in this case ordered abandonment of the
existing jury roll and enjoined discrimination in making up a new one.
Thus it circumvents the tedious method of enforcement through reversals in individual criminal cases, which have often left the system
virtually unaffected, since the occasional reversal of a conviction is a
price that many Southern counties have been willing to pay for continued discrimination.
But it would be altogether too sanguine to look for spectacular
results from this line of attack, worthwhile as it is to pursue it. If there
is local resistance, abetted in some measure by unsympathetic Southern
federal district judges-and it would be foolish to expect otherwiseinjunctions will no more solve the jury problem than they solved the
voting problem. Unless there is unexpected surge of voluntary compliance, a solution will ultimately have to follow the analogy of the
Voting Rights Act of 1965. Congress will have to establish some federal
criteria for jury selection, suspending the local ones, and perhaps send
down federal officials-the counterparts of the federal examiners now
registering voters in the South-to supersede county jury commissioners
for the time being. These would be radical measures, as are their
equivalents, embodied in the Voting Rights Act of 1965. But Congress
has the power to go to these lengths in enforcing the fourteenth amendment, since with respect to the composition of juries as with respect to
the right to vote, discrimination has not yielded to more moderate
approaches and persists on a massive scale. As in the voting legislation,
local control would merely be suspended, not permanently displaced.
It will take, however, very large numbers of Negro names on
jury lists to ensure that some Negroes survive challenges and other
customary privileges extended in the process of forming the trial jury,
and actually wind up in the box. 8 And it will take a willingness on the
part of Negroes to serve and not ask to be excused. Negroes on juries
can then, perhaps, conduce to fairer trials for Negro and other civil
rights defendants. In all cases they will have some beneficial effect on
the atmosphere in the jury room-they are likely, as Mr. Charles Morgan,
Jr. points out, 9 at least to clear it of racial jokes. Yet they cannot secure
convictions, which require a unanimous vote.
To the extent that the problem is failure to prosecute, and that
acquittals, when there is a trial, are caused by the frequent lack of
zeal, if not worse, of investigative and prosecuting officials-to that
extent, federal trials might take up the slack. But the relevant federal
8

See Swain v. Alabama, 380 U.S. 202 (1965).

Morgan, Segregated justice in SouTHmEN JUsTIcE 155, 164 (Friedman ed.
1965).
9

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SOUTHERN JUSTICE

1966)

criminal statutes are nearly a hundred years old; they were poorly
10
drafted to begin with, and they are in a state of grave disrepair.
The Supreme Court has just rehabilitated them in some measure in the
cases involving the federal prosecutions for the Schwerner-GoodmanChaney" and Lemuel Penn 12 murders. The solution, however, such as
it can be, of the difficulties with these statutes, lies not in revised judicial
interpretations, but in revised statutes.
In the exercise of its power under the fourteenth amendment, Congress can define more specific offenses committed "under color of law,"
13
and thus avoid some of the need for proof of subjective intent.
And it can declare that certain classes of crimes committed in circumstances that indicate racial motivation (e.g., crimes against civil rights
workers, or against Negroes who have tried to exercise their constitutional rights) are not being punished locally, and that this constitutes
a denial of equal protection by the state. Congress can then undertake
to make such crimes punishable under federal law, whether perpetrated
by private or official persons, with or without official knowledge and
connivance. The Civil Rights Commission has recommended enactment
of a statute of this sort. 14 Congress would be walking extremely close
to the limit of federal power here, but a skillfully drafted statute might
carve out a valid new area of federal authority, even if a relatively
narrower one than the problem really calls for. But such a statute would
in any event bring on no millennium.
Federal criminal cases must also be tried by Southern juries-federal
Southern juries, but Southern nevertheless. Even assuming that Negroes
sit on federal juries, they cannot secure convictions, anymore than on
state juries. For this reason, and owing also to the general limitations
of the criminal law as a method of preventing anti-social acts, a task of
protection against violence will remain to be faced by the federal government.
There is no such thing as absolute security, but in the Deep South
as much as on the subways of New York, substantial protection against
a rash of violence will be afforded not by new laws or by criminal
convictions, but by law enforcement officers on the scene. The President's power to put men on the scene is remarkably extensive and
independent. It is not, of course, boundless, or in some circumstances
free from legal doubts. But there is, the Supreme Court once said, "a
'OSee, e.g., 18 U.S.C. 241, 242 (1952); United States v. Williams, 341 U.S.

70(1951).
lUnited States v. Price, 34 U.S.L. WEEx 4313 (U.S. March 28, 1966).
United States v. Guest, 34 U.S.L. WE.EK 4323 (U.S. March 28, 1966).
3
1 Cf. Screws v. United States, 325 U.S. 91 (1945).
12

1 UNITED

STATES

COMMlISSION

ON CIVIL RIGHTS,

LAw ENFORCEMENT

(1965).

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177-78

MISSISSIPPI LAW JOURNAL

[VOL. xxxw1

peace of the United States,"'15 which is inherently in the President's

keeping. There is also considerable statutory authority, particularly
16
in a section that derives from an 1871 law known as the Ku Klux Act.
This section may be no better a job of draftsmanship than other Reconstruction measures, but its interpretation is at least initially the independent function of the President himself, and he is under no obligation
to take a restrictive view of it.
It would be irresponsible to suggest a pervasive police or military
occupation of even a portion of the South. Hence difficult decisions are
obviously called for in choosing places to which to send federal
marshals and, in a pitched crisis, military police. But a vigilant F.B.I.
can presumably provide some intelligent guesses about the places where
violence threatens, and as to some areas no more need be known than
that civil rights workers are there. Questions will also arise concerning
the extent of police authority that federal marshals should be instructed
to exercise, once they have been dispatched. But even if they are
instructed not to make arrests without warrants and to use force only
to repel attacks, their conspicuous armed presence as bodyguards, so to
speak, for American citizens exercising in the South their federal rights
to move and speak freely is bound to nip a great deal of violence in
the bud. Their presence in the right place on the right occasion may
perhaps also shame local leaders into reassuming their own responsibility
for law and order. The Civil Rights Commission has recommended that
the President use federal marshals in this fashion, and also that they
be authorized to make arrests when federal crimes are committed in
17
their presence.
Of course these suggestions carry some risks, signally the possibility
of ugly incidents between marshals and local officers, and of the
injudicious use of force by the marshals against private individuals.
No one should wish to give occasion for cries of police brutality or repeat
the not very successful experience of Reconstruction. But incidents
and excesses can be guarded against, and the suggestion is not that
an extensive police force be sent to the South to displace, or clash with,
the local force. The number of places where the need for protection is
acute, and the times when it is, are after all quite limited, and the suggestion is merely that a few well-marked, armed federals should be
in evidence. Had they been present, for example, in the mob milling
around that wretched store in Hayneville where Coleman killed Jonathan Daniels, there might possibly have been no killing.
15

1n re Neagle, 135 U.S. 1, 69 (1890).

1610 U.S.C. 333 (1952).
7

1 UNrr-E

STATES

COMMIUSION Ozq CwVI

RicsITs,

LAw ENFORCEMENT

(1965).

HeinOnline -- 37 Miss. L.J. 412 1965-1966

180-81

1966]

SOUTHERN JUSTICE

Protection against harassment of Negroes and civil rights workers

by the perverted use of local criminal laws is as inescapably a judicial
function as physical protection on the streets is ultimately an executive
one. Judicial protection is assured in the end by appeal from local
convictions to the Supreme Court, or by habeas corpus petitions in lower
federal courts. But these methods often come too late and do not
avoid the burdens and expenses of litigation. A more effective method is
the removal of state prosecutions at their inception to a federal court,
or the issuance of a federal injunction against them. Federal courts have
naturally been reluctant thus to interfere with the state criminal process,
and the applicable federal statutory law has hardly invited them to
do so. 18 The safe course for a federal district court has been to allow
state prosecutions to run their course, and until recently decisions to this
effect by federal district judges were not reviewable. Congress in the
Civil Rights Act of 1964, however, made such decisions reviewable by
courts of appeal, t 9 and the Court of Appeals for the Fifth Circuit has
shown increased willingness to look into charges of harassment and of
groundless prosecution.20 Congress could by statute encourage the
federal courts to do so, although care would have to be taken not to
insert the federal judiciary, as a normal procedure, into the initial stages
of the state criminal process. The object, after all, is not to take it
over, but to induce the state criminal process to purge itself of abuses.
There is thus only one aspect of "Jim Crow justice" which could
not be usefully addressed by federal legislative, judicial, and executive
action, and that is the demoralizing administration by law enforcement
officers in Negro communities of a different and laxer criminal and moral
code than is enforced in the white community. Here the solution lies
in the change of attitudes toward the Negro, which we must hope will
follow from the exercise of the franchise and from the general drive to
desegregate all state and many private activities. This ultimate development will, of course, also render obsolete all other intermediate expedients aimed at abolishing "Jim Crow justice."
Until then, the federal government has it in its power only to control
the disease, not to cure it. For generally valid constitutional reasons, it
cannot assume the basic criminal jurisdiction, nor administer criminal
justice without recourse to local juries. If it could, the result would
not be instant racial peace, because the criminal law is incapable of
eradicating crime. The realization that this is so ought to moderate
18See, e.g., 28 U.S.C. 1441-47 (1952); New York v. Galamison, 342 F.2d

255 (2d Cir. 1965).

1928 U.S.C. 1447(d) (Supp. 1965).
20

Rachel v. Georgia, 342 F.2d 336 (5th Cir.), cert. granted, 34 U.S.L. WF-K
3014 (U.S. Oct. 11, 1965).

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MISSISSIPPI LAW JOURNAL

[VOL. XXXVII

one's impatience-in the South as much as on Northern streets-with the

restraints the Constitution imposes on the so-called war against crime.
But the things the federal government can do will cleanse Southern
justice of some of its present corruption and will save some lives. These
things are therefore very much worth doing, and worth doing with
the utmost zeal.

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